Florida CoastalConstruction Permitting

By Andrew Baumann, Esq.Lewis, Longman & Walker, P.A.

abaumann@llw-law.com

The State of Florida Protectsits Beach andDune System

Fla. Stat. § 161.053 (2013)

Beach and Dune System Protective Value

• Natural buffer or barrier against coastal storms• Reduces upland flooding• Reduces undermining of structures from erosion • Dissipates wave energy

Coastal construction activities are regulated by the State to prevent imprudent construction to protect:

People who live thereEndangered speciesTourismPublic Access

Coastal Permitting is “Regulation”

NOT “Prohibition”!

LINES INTHE SAND:

Mean High Water Line (MHWL) & 50-Foot Setback

Thirty-Year Erosion Projection Line

Coastal Construction Control Line (CCCL)

What is a CCCL?The Coastal Construction Control Line (CCCL) is the regulatory line established on a county by county basis …which defines “that portion of the beach-dune system subject to severe fluctuations based on a one-hundred-year storm surge, storm waves, or other predictable weather conditions.”

(Fla. Stat. § 161.053 (2013))

Defines the jurisdictional limits for construction or excavation activities which require authorization from the DEP

Established on a County-by-County basis

Supersedes the 50-Foot Setback Line

What Counties Have a CCCL?

Mean High Water Line (MHWL) and 50-Foot Setback

(Fla. Stat. § 161.052 (2013))

• 1970• First Regulatory Control Line• Construction Along Florida’s Coast• Excludes Bays, Inlets, Rivers, etc.• Only Sandy Beaches• Adopted as Stop-Gap Program before CCCL Regulatory Program

Proposed Construction – Seaward of the MHWL

(Fla. Stat. § 161.041(1) (2013))

Any coastal construction requires a permit from DEPAlso requires proprietary authorization for use of SSLNote: Adjustment, Alteration or Removal of Existing Structures Ordered by DEP (Fla. Stat. § 161.061 (2013))

Thirty-Year Erosion Projection Line

Fla. Stat. § 161.053(5)(b) (2013))• Forecast of Shoreline Recession

• Based on Historical Measurements

• Site Specific Basis

• Several Factors Considered by DEP in Making Determination(Fla. Admin. Code Ann. r. 62B-33.024(2) (2013))

Proposed Construction – Seaward of the Thirty-Year Erosion

Projection Line

Line of Prohibition — Almost

• Repairing, Rebuilding, Relocation of Existing Structure(Fla. Stat. § 161.053(12)(a) (2013))

• Single Family Homes(Fla. Stat. § 161.053(5)(c) (2013))

Can One Build or Rebuild Seaward of the CCCL? YES

Construction Activities are NOT prohibited seaward of the CCCL. However, “...(s)pecial siting and design considerations shall be necessary seaward of established coastal construction control lines to ensure the protection of the beach-dune system, proposed or existing structures, and adjacent properties and the preservation of public beach access.”

(Fla. Stat. § 161.053(1)(a) (2013))

Single Family Homes

May Be Constructed Seaward of the Thirty-Year Erosion Line if:

PlattedNo other adjacent/landward propertyLandward of frontal duneAs far landward as possible

Fla. Stat. § 161.053 (11)(c) (2013)

Boat mooringsMaintenance of vegetationBury seaweed/dead fishRemove derelict structuresEmergency vehicle accessRemove upland structures or debrisRoof overhangRepair utilities

Furniture and awningsMinor structure tie-downsPortable lifeguard standsMono-post structuresMinor recreational diggingRemoval of windblown sandMinor maintenance of bulkheads & seawalls

Minor Activities with Minimal Impact

Potential Issues

Beach and Dune System Impacts (siting, excavation and vegetation removal)30-year erosion projection of seasonal high water line (line of prohibition for major structures)Impact to adjacent PropertiesPublic Beach AccessLine of Construction

Marine Turtles- designation of Critical Habitat

Federal Designation of Critical Habitat (CH) for Loggerhead Marine Turtles

Terrestrial CH for the Northwest Atlantic Loggerhead discrete population segment This designation includes 37 units of habitat in the Peninsular Florida Recovery Unit Spans 226.7 miles on the Atlantic Ocean shoreline and 123.5 miles on the Gulf Coast shorelineThese miles account for 87% of documented nesting No unoccupied habitat is being proposed as critical habitat.

Loggerhead Terrestrial CH-Another Line in the Sand?

Each Recovery Unit described individuallyMajority: “The unit includes land from the MHW line to the toe of the secondary dune or developed structures.”

MHWCH

Exclusions/Exemptions from Critical Habitat:

Department of Defense Installations : Marine Corps Base Camp Lejeune; Cape Canaveral Air Force Station; Patrick Air Force Base; Eglin Air Force Base.Will not consider exclusions based on: economic, national security or other relevant impact but accepted public comment on those subjects and may make individual determinations based on public comment in the final rule.

Methods of Minimization

Landward sitingReducing proposed footprint sizeReducing excavationManage excavated material on siteReducing vegetation disturbanceEliminating unnecessary activities and structuresFollow Turtle Lighting Guidelines

Plan StrategyDo you need or want a permit? (Exemptions)Permitting TeamPre-application meetingDiscuss approach to potential oppositionDevelopment AgreementsVariances

Publish Notice

62B-41 Rules and Procedures

Cite to rule- Fla. Stat. § 120.542 (2013)Action requestedJustification/ HardshipConsistent with

statutory intentDoes not apply to SSL Approvals

(See Board of Trustees v. Levy, 656 So.2d 1359 (Fla. 1st DCA 1995))

Variances from Agency Rule – Requests Must Include:

Process for Challenge of Permits

Permits are Agency Action, Subject to Chapter 120

ALWAYS Publish Notice!!Standing Requirement

Burden of Proof in 3rd Party Challenges

Fla. Stat. 120.569 (p) (2013)

Does Not Apply to Coastal Construction Permits

Traditional Rule Applies: Burden is on the applicant to prove entitlement to permit!!Permits for Coastal Construction only issued when an application is shown to be “clearly justified” by demonstrating all standards in rule and statute are met. 62B-33.005(4), F.A.C.

Sample Case

Petrandis et al. v. DEP, Case No. 10-1137 (Fla. DOAH Aug. 22, 2011).DEP denied application for CCCL permit to armor the beach seaward of CCCLWaiver “Close the Gap” Law

THANK YOU

Andrew Baumann, Esq.Lewis, Longman & Walker, P.A.

slewis@llw-law.com